Lakeview Rock Products, Inc.

Read the official release (fmshrc.gov)

Plain-English summary

Lakeview Rock Products operated a sand and gravel pit in Salt Lake City, Utah. Judge Arthur J. Amchan addressed three MSHA inspections and 27 contested or withdrawn violations involving electrical protection, guarding, workplace examinations, footwear, berms, access, and related safety requirements. He sustained or modified the litigated violations, reduced several proposed penalties, and ordered Lakeview to pay $3,553 total, including penalties for 14 violations whose contests were withdrawn.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 50.40(b), 50.30, 56.12032, 56.12025, 56.13021, 56.11001, 56.14132(a), 56.11002, 56.18002(a)-(b), 56.14107(a), 56.15003, and 56.9300(a)
• Outcome: The judge assessed penalties for 27 violations, including reduced penalties for several litigated matters, totaling $3,553.
• Key point: The final penalty reflected the proven conditions, the operator’s history, and the violations withdrawn at the hearing.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA 22041




                        August 30, 1996

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 94-504-M
Petitioner : A.C. No. 42-01975-05507
v. :
: Docket No. WEST 94-614-M
LAKEVIEW ROCK PRODUCTS, INC., : A.C. No. 42-01975-05508
Respondent :
: Docket No. WEST 95-49-M
: A.C. No. 42-01975-05511
:
: Docket No. WEST 96-88-M
: A.C. No. 42-01975-05519
:
: Docket No. WEST 96-89-M
: A.C. No. 42-01975-05520
:
: Docket No. WEST 96-209-M
: A.C. No. 42-01975-05523
:
: Mine: Lakeview Rock Products

                             DECISION

Appearances: Ann Noble, Esq., Office of the
Solicitor, U.S. Department of
Labor, Denver, Colorado, for
Petitioner;
Gregory M. Simonsen, Esq., Kirton &
McConkie, Salt Lake City, Utah, for
Respondent.

Before: Judge Amchan

 These cases involve three inspections conducted by MSHA at

Respondent’s sand and gravel pit in Salt Lake City, Utah. The
first three dockets concern inspections made by Richard Nielsen

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in November, 1993, and May, 1994. The last three dockets concern
an inspection made by Ronald Pennington in August 1995. At the
commencement of the hearing Respondent withdrew its contest to 14
penalties proposed by the Secretary. These are recounted in the
transcript of this proceeding at pages 21-25. The citation/
orders and penalties that were litigated are discussed below.

Citation 4120703, November 3, 1993 (Docket No. WEST 94-504-M)

 On November 3, 1993, Inspector Nielsen arrived at

Respondent’s mine accompanied by his supervisor William Tanner.
During the inspection there was a confrontation between Inspector
Tanner and Glenn Hughes, Respondent’s President. Respondent also
contends that there were confrontations between Mr. Tanner and
Scott Hughes, the manager of the sand and gravel pit. This is
denied by Mr. Tanner.

 While I need not reconcile the vastly differing accounts of

what transpired, the enmity that resulted has at least some
relevance to what has transpired between MSHA and Respondent
since that date. Several citations and penalties from that
inspection were litigated in front of me in late 1994 and were
decided on January 30, 1995, 17 FMSHRC 83.

 On November 3, 1993, Inspector Nielsen asked Scott Hughes on

several occasions to show him Respondent’s quarterly employment
report. Each time Hughes told him that he would have to make an
appointment to see these reports at Respondent’s headquarters
office, which was located less than five miles from the pit
(Tr. 35-48)1. At about 1:20 p.m. Nielsen issued Lakeview a
citation alleging a violation of 30 C. F. R. § 50.40(b), which
requires copies of this report to be maintained at the mine
office closest to mine site for 5 years after submission
(Exh. P-6, block 2).

 The next evening at the closing conference Hughes produced

and allowed Nielsen to inspect the quarterly reports (Tr. 35,
447). The language of the regulation suggests that the quarterly
reports need not be kept at the mine site. However, I conclude
that when it is read in conjunction with section 109(a) of the
Act, which requires that there be an office at every mine, the
regulation requires that a mine operator maintain quarterly
employment reports at the mine site.

 The Secretary proposed a $100 civil penalty for this

 1
  I credit Nielsen’s testimony in this regard over Scott

Hughes’ testimony at Tr. 445.

                            2

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violation. Considering the penalty criteria in section 110(i) of
the Act, I assess a $10 penalty2. I deem Respondent’s negligence
to be very low in that the language of the regulation suggests
that the quarterly reports need not be kept at the mine site.
Moreover, the gravity of the violation was low. Lakeview
apparently timely filed the reports with the MSHA Health and
Safety Analysis Center as required by section 50.30. Finally,
Respondent rapidly abated the violation by bringing the reports
to the closing conference.

Citation 4120697: Open Door on Electrical Compartment(Docket
WEST 94-614-M)

 On his November 1993 inspection, Nielsen observed that the

door to an electrical junction box was open to an angle of 45
degrees. After Nielsen called this to the attention of Scott
Hughes, Hughes closed the door almost all the way with a wire
cable (Tr. 49-55, 108-112)3.

 Section 56.12032 requires that cover plates on electrical

equipment and junction boxes be kept in place except during
testing or repairs. The door to the compartment observed by
Nielsen served as a cover plate. I read the standard as
requiring that such doors be completely closed. Otherwise,
electrical cables inside the compartment can be damaged by
exposure to the elements or someone may inadvertently contact one
of the cables (Tr. 54-55). I conclude that consideration of the
penalty criteria in section 110(i) justifies assessment of a $50
civil penalty as proposed.

      Citation 4332839: No Office At The Mine Site

 On May 2, 1994, Inspector Nielsen issued Lakeview a citation

for violation of section 109(a) of the Act. Respondent did not
maintain an office at the pit as required by that provision.
Afterwards, Respondent abated by designating its scale house as
the mine office and erecting a bulletin board.

 2
  With regard to all the violations discussed herein I have

considered that Respondent is a small mine operator and that
there is no indication in the record that the proposed penalties
will compromise its ability to stay in business. After
considering its history of past violations of the Act, I see no
reason to raise or lower any of the penalties, except as
specifically noted.
3
I find Inspector Nielsen’s testimony regarding the size of
the opening more credible than that of Mr. Hughes at Tr. 449.

                            3

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 There is no question that Respondent was in violation of

section 109(a). I assess a $25 civil penalty rather than $50 as
proposed. The cited requirement is one of the more obscure
provisions of the Act. The Lakeview pit had been inspected on
several occasions previously without any of the inspectors making
an issue of the lack of a mine office. I deem this to be
evidence of extremely low negligence on the part of Respondent,
who appears to have been unaware of this requirement.

  Citation 4332903: Alleged Ungrounded Portable Heater

 On May 2, 1994, Inspectors Nielsen and Tanner saw an

unplugged portable heater sitting on a chair in the control room
of the pit (Tr. 60, 168). The plug on the heater was a three-
prong plug, from which one of the prongs had been removed
(Tr. 60-62, 454). Nielsen issued Respondent a citation alleging
a violation of section 56.12025, which requires that all metal
which encloses or encases electrical circuits be grounded or
provided with equivalent protection.

 Respondent contends that the heater was double-insulated and

thus was provided with protection equivalent to the grounding of
the metal frame (Tr. 453-4, 522-24). While the inspectors insist
that the heater was not double insulated, they have not persuaded
me that they are correct. Nielsen conceded that he would have to
look at the heater again in order to determine whether or not it
was double-insulated (Tr. 121). Tanner conceded that he and
Nielsen did not inspect the heater to determine whether it was
marked as double-insulated (Tr. 169). I therefore conclude that
the Secretary has not met his burden of proving that equivalent
protection was not provided. I therefore vacate this citation
and the corresponding proposed penalty.

     Citation 4332838: Unsecured Drill Hose Sections

 Inspector Nielsen found a drill, above the pit, connected to

an air compressor by a hose which consisted of sections. At two
points where the hose sections came together they were not
secured by locking devices. Also, the drill itself was not
secured to the hose (Tr. 67-73).

 Nielsen issued citation 4332838 alleging a violation of

section 56.13021. That standard provides:

 Except where automatic shutoff valves are used, safety
 chains or other suitable locking devices shall be used
 at connections to machines of high-pressure hose lines
 of 3/4-inch inside diameter or larger and between high
 pressure hose lines of 3/4-inch inside diameter or

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 larger, where a connection failure would create a
 hazard.

 Neither Inspector Nielsen nor Inspector Tanner saw the drill

in use (Tr. 69-70, 161-62). Respondent’s pit manager Scott
Hughes contends that the drill was not operational and had not
been used in approximately 8 months prior to the inspection. He
kept the hoses hooked together to prevent dirt from getting
inside them and to prevent small animals from damaging the hoses
(Tr. 451-52, 521-22). The drill was not tagged out to indicate
that it was defective (Tr. 177).

 If the drill is operated without sufficient locking devices

there is a danger that the sections will separate and the loose
ends will whip violently and injure someone (Tr. 69-70).
Although I credit Mr. Hughes’ testimony with regard to the
condition of the drill, I affirm the violation and assess the $50
penalty proposed by the Secretary.

 Even though the drill had not been used, it was accessible

to miners and could be started by jump starting it with other
equipment (Tr. 162-63). Thus, without being tagged out the
condition of the drill was at least potentially hazardous to
miners.

Citation 4332911: Inadequate Landing Below Ladder to Jaw Crusher

 Inspector Nielsen concluded that there was insufficient room

at the base of a ladder on one of Respondent’s jaw crushers to
provide safe access or egress (Tr. 73-75). He also concluded
that if one fell getting on or off the ladder, there was a sharp
drop of 8 feet below them (Tr. 73-74, Exhs. P-20 & 21). He
therefore issued Respondent citation 4332911, alleging a
violation of section 56.11001. The standard requires that a safe
means of access be provided and maintained to all working areas.

 Scott Hughes contends that there was a 3 to 4 foot ledge

below the ladder and that there was a gradual slope below it
(Tr. 455-57). I conclude that the testimony of inspectors
Nielsen and Tanner is too imprecise to affirm this citation.
They did not testify as to size of the ledge below the ladder or
the degree of the slope below that ledge. All I am left with is
their subjective view that access to the ladder was unsafe. That
does not provide a sufficient basis on which I can determine
whether section 56.11001 was violated as alleged. The citation
and proposed penalty are therefore vacated.

         Citation 4332912: Ungrounded Lamp Post

 During his May 1994 inspection, Mr. Nielsen observed a

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portable lamp post which had a plug that had two prongs instead
of three (Tr. 78-79). From this he concluded that the metal
frame was not guarded. He therefore issued citation 4332912
alleging a violation of section 56.12025.

 The record establishes that the lamp post was available for

use and could have posed hazards to miners. Therefore, citation
4332912 is affirmed and a $50 civil penalty is assessed.

Citation 4332913: Maintenance Truck with Inoperative Horn and No
Back-up Alarm

 Inspector Nielsen observed a 2-ton Ford service truck parked

in the pit area. The truck had been backed into its position.
Welding equipment sat in the rear cargo area. The truck was not
equipped with a reverse signal alarm and its horn did not work
(Tr. 80-85, 132-35, 457-461).

                            6

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 Nielsen cited Respondent for a significant and substantial

(“S&S”) violation of section 56.14132(a). That standard requires
that horns and other audible warning devices provided on such
vehicles be maintained in a functional condition. It is clear
that the standard was violated with regard to the horn, but there
is no evidence on which I can conclude that the condition of the
horn was a “S&S” violation.

 There was no violation of section 14132(a) with regard to

the reverse signal alarm as I have concluded that the truck was
not equipped with one. I also conclude that the evidence does
not establish that the truck was required to have such a device
under section 56.14132(b). Scott Hughes’ testimony indicates the
truck did not have an obstructed view to the rear (Tr. 458-9).
The Secretary’s testimony is much too imprecise to credit over
that of Mr. Hughes.

 I affirm the citation with respect to the horn only and

assess a $25 civil penalty for a non-“S&S” violation. The record
does not establish the gravity of the violation and the Secretary
has conceded that Respondent’s management was unaware that the
horn did not work (Exh. R-4). I therefore conclude that its
negligence, if any, was very low.

                 AUGUST 1995 INSPECTION

 Shortly after the May 1994 inspection, Glenn and Scott

Hughes consented to a judgment, which among other things,
prohibited them from participating in any MSHA inspections at
Lakeview Rock Products (Exh. P-68). When Inspector Ronald
Pennington arrived to conduct an inspection on August 29-30,
1995, Scott Hughes left the site (Tr. 473-75); other company
officials accompanied Pennington.

Order 3908553: Missing Railings at the Edge of the Opening for
the Jaw Crusher

 On August 29, 1995, Pennington inspected the top deck of the

primary jaw crusher. No miners were working on the top deck at
this time. On the deck was a 49-inch by 45-inch opening situated
above the jaw. Inspector Pennington found the cover to the
opening fixed in an upright position and two of the four railings
around the opening missing. These were the railings on the East
and West side of the opening (Tr. 215-220).

 Pennington concluded that there was a danger that miners

could fall into the opening. He therefore issued section
104(d)(2) Order 3908553 alleging a violation of section 56.11002.
The standard requires that elevated walkways be provided with
handrails and be maintained in good condition.

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 The inspector characterized Respondent’s negligence as

“high” and therefore an “unwarrantable failure” to comply with
the Act for two reasons. First, Respondent had been cited for
failure to protect an opening of a jaw crusher by Inspector
Nielsen in May, 1994 (Exh. P-1). Secondly, Pennington recalled
being told by members of the inspection party that the crusher
had operated “this way” for some time (Tr. 228).

 Inspector Pennington also concluded the miners were

regularly exposed to this unguarded floor opening. He found a
hammer and a pry bar near it (Tr. 220). He also testified that
either miner Daren Bowman or miner Darin Paris told him that the
jaw is unjammed manually, if possible (Tr. 229-30, 317).

 At the hearing both these miners testified to the contrary,

as did pit manager Scott Hughes. All three said that the jaw is
never cleared manually. Instead, Respondent always uses an air
hammer attached either to a Kobelko excavator or John Deere
backhoe to unjam the crusher (Tr. 386-389, 436, 462-63). I
credit this testimony and find that employees were not exposed to
the open-sides of the jaw opening while clearing rock jams.

 Respondent, however, goes further and contends that miners

almost never go to the top deck of the crusher. Scott Hughes,
for example, testified that the only reason to be on the deck was
to inspect the manganese liner to the jaw, which he does every
six months or so (Tr. 469). Bowman (Tr. 393-94) and Paris
(Tr. 435) also testified that there is no reason for a miner to
go up on the top deck.

 However, Respondent’s witnesses were not particularly

consistent with regard to use of the top deck. Bowman at one
point testified that miners go up on the deck 2 to 3 times a week
to do greasing and maintenance (Tr. 387). Scott Hughes explained
the presence of the pry bar by testifying that he instructs his
miners to store tools on the platforms to avoid the possibility
that they may be scooped up by a front-end loader and fed through
the plant (Tr. 466).

 I therefore conclude that miners were in the vicinity of the

jaw opening on a regular basis. However, it has not been
established that they were ever exposed to the hazard of falling
into this opening. The railings around the jaw opening were easy
to remove and reinstall. On some occasions, the railings were
removed to facilitate the work of the air hammer. When the air
hammer operated, there was no reason for miners to be on the top
deck. Respondent contends that the rails were reinstalled when
miners went to the top deck to do other tasks (Tr. 467-68).
There is no evidence establishing that this was not the case.

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Therefore, I vacate Order 3908553.

Order 3908554: Missing Top Rail on the Top Deck of Jaw Crusher;
Hole in the Deck Floor

 The top handrail guarding the eastern edge of the deck of

the jaw crusher was not in place on August 29, 1995. For a
distance of 75 inches horizontally, this edge was protected only
by a midrail. The deck was 13 to 14 feet above the adjacent
ground level (Tr. 248-253). Additionally, there was a hole in a
corner of this edge of the deck with dimensions of approximately
24 by 18 inches (Tr. 250-52). The hole was immediately above the
bullwheel that serves as a counterweight for the jaw crusher
(Tr. 332-34, Exh. P-30).

 Inspector Pennington issued another section 104(d)(2) order

for these conditions. The characterizations of “high” negligence
and “unwarrantable failure” are predicated on a notation in the
body of the order that an employee told Pennington that he had
reported the hole in the floor to the pit manager (Scott Hughes)
on a couple of occasions (Exh. P-28, block 8). Mr. Pennington
testified that he received this information from either
Mr. Bowman or Mr. Parris (Tr. 253).

 At hearing, however, Darin Parris testified that he did not

know anything about the hole until the day of the inspection and
that he thought he was on the walkaround with Pennington when he
noticed it (Tr. 434). Scott Hughes testified that he was unaware
of the hole until 5 minutes before he left the pit on the day of
the inspection and that he ordered it be fixed immediately
(Tr. 474-75). He testified that he was not aware of the missing
toprail until the day after the inspection (Tr. 472-73). It
appears that the railing could have been knocked off and the hole
created on the morning of the inspection by the air hammer
mounted on the Kobelko excavator (Tr. 543-44).

 In summary there is insufficient basis on which I can

conclude that Respondent’s management knew of the cited
conditions for any appreciable period of time before they were
noticed by Inspector Pennington. I therefore conclude that
“high” negligence and “unwarrantable failure” have not been
established.

 I affirm this violation as a “S & S” violation of section

104(a) of the Act. The Commission test for "S&S," as set forth
in Mathies Coal Co., supra, is as follows:

 In order to establish that a violation of a
 mandatory safety standard is significant and

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 substantial under National Gypsum the Secretary
 of Labor must prove: (1) the underlying violation
 of a mandatory safety standard; (2) a discrete
 safety hazard--that is, a measure of danger to
 safety--contributed to by the violation; (3) a
 reasonable likelihood that the hazard contributed
 to will result in an injury; and (4) a reasonable
 likelihood that the injury in question will be of
 a reasonably serious nature.

 The Commission, in United States Steel Mining Co., Inc.,

FMSHRC 1573, 1574 (July 1984), held that S&S determinations are
not limited to conditions existing at the time of the citation,
but rather should be made in the context of continued normal
mining operations. I conclude that in the continued course of
normal mining operations it is reasonably likely that a miner
would fall into the unprotected hole in the deck or off the
inadequately protected deck perimeter. It is also reasonably
likely that he would be seriously injured by the fall.

 I also conclude that a $500 civil penalty is warranted under

section 110(i). The deck of the jaw crusher was visible from the
control shed (Tr. 472) and Respondent’s employees should have
reported the damage to the railing and floor if they had been
properly trained and supervised. I therefore conclude that
Respondent was to some extent negligent in the creation and
persistence of this violation. Although Mr. Hughes testified
that he ordered the hole repaired immediately, it was not
repaired until Mr. Pennington required its repair (Tr. 474-75).

    Order 3908602: Records of Workplace Examinations

 Section 56.18002(a) requires that a competent person examine

each working place at least once each shift for safety hazards.
It also requires that the mine operator immediately initiate
action to correct such hazards. Section 56.18002(b) requires
that records of such examinations be kept for a period of one
year and be made available to the Secretary of Labor.

 On August 30, 1995, Inspector Pennington asked to see

Lakeview’s daily workplace examination records. Respondent gave
him one report for each day in August 1995 signed by Daren
Bowman, who operated equipment such as front-end loaders
(Tr. 372-76, 383-4). No other reports for the month of August
were produced at the inspection or anytime since, including at
the hearing.

 George Miles, the control room operator, then brought

Pennington inspection reports for a few more dates in March,

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April and May 1995. Respondent has never produced any records
for other dates in these months nor any for all of June and July
(Tr. 269, Exh. R-3). There are no records for this time period
other than those contained in Exhibit R-3 (Tr. 538).

 Respondent’s employees Bowman and Miles, and pit manager

Scott Hughes testified that the daily inspections were done,
recorded and maintained as required. Obviously, the records
produced suggest otherwise. At a minimum the record establishes
that records were not kept for a period of a year and made
available to MSHA as required by section 56.18002(b).

 Although the Secretary alleged a violation of

section 56.18002(a), I amend the pleadings pursuant to Rule 15(b)
of the Federal Rules of Civil Procedure and find an unwarrantable
failure to comply with section 56.18002(b). I assess a $1,500
civil penalty.

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 It is obvious from the record that Respondent was very

cavalier about compliance with the daily inspection report
requirement. Not only should there be reports for every date,
but there should also be several reports, some covering the plant
and some covering vehicles, such as front-end loaders.

 At the November 1993 inspection Lakeview was cited for its

failure to provide workplace examination records to the
Secretary. This order was litigated before me and affirmed as a
section 104(d) order, 17 FMSHRC 83 at 88-89. The prior
adjudication occurred prior to the time period covered by the
instant order. For Respondent to be unable to produce many of
the required records in August 1995 is aggravated conduct worthy
of the appellation “unwarrantable failure”.

 The gravity of the violation is unclear. However,

Respondent’s negligence or intentional disregard of the record
keeping requirement, in light of its prior history of violations
of the same requirement, warrants a substantial civil penalty. I
conclude $1,500 is an appropriate figure taking into
consideration all the factors in section 110(i).

         Citation 3908545: Unguarded Tail Pulley

 Inspector Pennington also discovered a tail pulley on a

conveyor belt that was not protected with a guard (Tr. 273-277,
Exh. P-37). The fins of the tail pulley were 40 inches above
ground level and several water pipes partially shielded these
fins from contact by employees. Debris falling from the conveyor
was normally cleaned up with a rake projecting from a front-end
loader (Tr. 494).

 Pennington issued a citation for a “S&S” violation of

section 56.14107(a) of MSHA’s regulations, which requires
guarding of moving machine parts. I affirm the citation and
assess a $100 civil penalty.

 I credit the opinion of Inspector Pennington that the water

pipes did not block access to the unguarded fins of the tail
pulley to the extent that a guard was not necessary. I also
find that in the continued course of mining operations it was
reasonably likely that an accident would occur and that the
accident would result in a serious injury. Although
Respondent’s normal practice was not to clean spills from the
conveyor manually, there is no reason why a miner might not
approach the unguarded pulley if it was more convenient to shovel
a spill rather than obtain the assistance of the front-end
loader.

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      Citation 3908560: Miners Wearing Tennis Shoes

 On August 30, the inspector observed two miners wearing

tennis shoes on the site (Tr. 281-85). Pennington cited
Respondent for an “S&S” violation of section 56.15003 which
requires “suitable protective footwear” when working in an area
in which hazards could cause injury to the feet.

 Pennington considers the wearing of a hard leather shoe to

constitute compliance with the standard. Respondent’s safety
policy requires the wearing of leather work boots (Tr. 495-96).
Since the parties appear to agree that “suitable protective
footwear” at the Lakeview mine excludes the wearing of tennis
shoes I affirm the citation.

 On the other hand there is not enough evidence in the record

regarding the normal activities of the two employees to warrant
finding a “S&S” violation. I therefore affirm the citation as
non-“S&S” and assess a $25 civil penalty.

 In assessing the penalty I place particular weight on the

lack of evidence that Lakeview management was aware of the
violation and that the violations appear to be contrary to
company policy. Further, Scott Hughes appears to have taken
appropriate steps to prevent a recurrence of this violation
(Tr. 496).

Citation 3908601: Lack of Berm on Ramp Leading to the Primary
Crusher

 Pennington observed a front-end loader feeding the primary

crusher at a time when a horizontal distance of 12 feet on the
ramp leading to the crusher was unguarded by a berm (Tr. 286-
296). The tires of the loader were only 12 inches from the edge
of the ramp. There was a drop-off of between 10 to 12 feet from
the side of the ramp.

 The inspector issued a citation alleging an “S&S” violation

of section 56.9300(a). This regulation requires berms or
guardrails on the banks of roadways where a drop-off exists of
sufficient grade or depth to cause a vehicle to overturn. I
conclude that a violation has been established and that it was
“S&S” under the Mathies test. In the course of continued mining
operations it is reasonably likely that a vehicle would overturn
due to the lack of a berm and that the driver would be seriously
injured.

 Although the Secretary proposed a $69 penalty for this

violation, I assess a civil penalty of $300 pursuant to the

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criteria in section 110(i) of the Act. Given the gravity of this
violation, I believe a penalty of $100 would be appropriate if
Respondent’s negligence was low and this was the first berm
citation received by Lakeview. However, Pennington cited
Respondent for two berm violations in virtually identical
circumstances in 1992. These were affirmed by Judge Cetti in
August 1995, 17 FMSHRC 1413 at 1415-16. In view of this prior
history of violations a much higher civil penalty is warranted.
It also affects my view of Respondent’s negligence with regard to
the instant violation.

 Once a mine operator has been cited for a violation of this

nature, prudence would dictate more attention to assuring
compliance with the berm regulation. There is no evidence that
Lakeview took any steps to insure future compliance after the
1992 inspection. Therefore, I conclude that a $300 civil
penalty is appropriate in view of the company’s prior history of
violations and its lack of demonstrated prudence in attempting to
prevent recurrences.

Citation 3908549 (Docket WEST 96-209-M): Safe Access to El-Jay
Head Cone & Screen

 Upon observing the El-Jay Head Cone & Screen, Inspector

Pennington determined that there was no safe way to access this
equipment for maintenance (Tr. 297-303, 349-356). Pennington was
primarily concerned that miners could fall while accessing this
machine by climbing on an unsecured ladder and the railing above
the conveyor running to the El-Jay Cone & Screen. The record
establishes that miners did on some occasions access this
equipment in this fashion (Tr. 426-431).

 Pennington cited Lakeview for an “S&S” violation of section

56.11001 which requires that safe means of access be provided to
all working places. I conclude that the fact that miners at
times found it convenient to climb onto the El-Jay cone crusher
via the unsecured ladder establishes a violation of the standard.
However, the Secretary has not established that the violation was
“S & S”. Employees climbed on the crusher only when the plant
was turned off (Tr. 426-428). The only hazard established is
that of falling a few feet onto dirt.

 I conclude that it has not been established that the likely

result of an accident due to this violation would be serious
injury. In view of this record, I assess a $50 civil penalty
rather than the $270 proposed by the Secretary.

                          ORDER


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 Respondent is hereby ordered to pay to the Secretary the

following civil penalties within 30 days of this decision:

      Citation            Penalty

      4120703             $   10
      4120697             $   50
      4332839             $   25
      4332838             $   50
      4332912             $   50
      4332913             $   25
      3908545             $ 100
      3908560             $   25
      3908601             $ 300
      3908554             $ 500
      3908602             $1,500
      3908549             $   50




                           15

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Page 16

 Respondent is also directed to pay at the same time, if it

has not done so already, the penalties for the 14 violations for
which it withdrew its contest at the commencement of the hearing
(Tr. 21-25). The total penalty for all 27 violations is $3,553.

                          Arthur J. Amchan
                          Administrative Law Judge

Distribution:

Ann M. Noble, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)

Gregory M. Simonsen, Esq., Kirton & McConkie, 60 East South
Temple, Suite 1800, Salt Lake City, UT 84111 (Certified Mail)

dcp

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